Family and Medical Leave Act of 1993
Legally Speaking
Clifford Warren Lober, MD, JD, presents legal dilemmas in dermatology every other month. He is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.
By Clifford Warren Lober, MD, JD, February 1, 2019
Question: My office manager is requesting that he be given a month’s leave after his wife gives birth to their first child next month. He asked that this be granted under the Family and Medical Leave Act (FMLA). He is really critical to our daily operations. What is the FMLA and must I grant his request?
Answer: The FMLA was enacted in 1993 to “allow eligible employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave for a total of 12 workweeks in any 12 months.” If you are a covered employer’ and the employee qualifies for leave, you must grant it.
Q: The office manager is a man. Are men eligible to take leave to care for a newborn under the FMLA?
A: Absolutely! The Act applies to all employees regardless of their gender.
Q: What circumstances qualify for FMLA leave? I thought the FMLA only applied if the employee was seriously ill.
A: The Act requires that you grant leave (1) for the birth of a child and to care for the newborn within one year of its birth, (2) for placement with the employee of a son or daughter for adoption or foster care and to care for that child within one year of placement, (3) to care for the employee’s spouse, son, daughter, or parent with a serious health condition, or (4) when a serious health condition makes the employee unable to perform the essential functions of the employee’s job. There are special provisions for members of the military, certain airline employees, and their families.
Q: What does the Act mean by the term eligible employee’? How do I determine if my office manager is one?
A: In order to benefit from the FMLA, he must have been employed by you for at least one year, have been employed at least 1,250 hours during the year immediately preceding the requested leave, and must be employed at a worksite “where 50 or more employees are employed by the employer within 75 miles of that worksite.”
Q: Am I a “covered employer”?
A: For the provisions of the FMLA to apply to a private employer, you must employ 50 or more people for 20 or more weeks during the current or preceding calendar year.
Q: Do we have to pay for his health care benefits while he is on leave?
A: You must maintain those benefits during his leave as if he were reporting to work on a regular basis.
Q: You mentioned that the Act applies if an employee or their son or daughter has a “serious health condition.” What is a serious health condition?
A: “Serious health conditions” include pregnancy, situations that require an overnight stay in a medical facility, and instances that incapacitate the employee or their affected family member for more than three consecutive days and require ongoing medical treatment. The Act specifically states that unless complications arise, “the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine” and routine dental problems do not qualify for FMLA leave.
Q: When our office manager returns, do I have to offer him the same position?
A: You are required to reinstate him in the same position he held when he took leave or to a similar position with equivalent salary, benefits, and other conditions of employment.
Q: It will be very hard for us to keep his position open. His role is very critical to our practice.
A: If he is among the highest paid 10% of all the employees, he may be considered a key or highly compensated employee. In that case, if you can show that restoring him to his prior position would cause “substantial and grievous economic injury” which would threaten the economic viability of your practice, you may be able to deny restoring him to his previous position. This is, however, a very stringent test. If you anticipate not restoring him to his previous position there are particular requirements, such as written notification, that must be met.
Q: My office manager has accrued a significant amount of paid leave. Can he take paid leave under the FMLA?
A: The FMLA requires only that the employee be given the opportunity to take unpaid leave. It does, however, permit an employee to elect (or an employer to require) the use of paid leave subject to certain specific conditions.
Q: Do I have to be concerned about state laws?
A: Yes. Many states have labor laws that have lower thresholds for determining an eligible employee or covered employer and/or broaden the range of covered conditions. If state laws mandate broader or more inclusive coverage of employees, those state laws must be followed.
Q: What else should I be aware of?
A: As an employer covered by the FMLA, you are required to post a notice informing employees of the Act in a conspicuous place. This should also be mentioned in your employee handbook. Finally, because the FMLA contains many nuances and exceptions to its provisions, please keep me informed so that I can make sure you are in compliance.
Q: If my office manager has any questions, where can I refer him to get answers?
A: The FMLA is administered by the Wage and Hour Division of the Department of Labor. They can be reached at (866) 487-9243.
